MOYO
J: This is an application for
condonation for the late noting of an appeal against the decision of the
Commissioner General of Police (the 1st Respondent herein).
The Respondents could not be heard in court although present as no
heads of argument had been filed by the Respondents. The Applicant
was convicted in terms of the Police Act [Chapter 11:10] and was sentenced to
pay a fine of $10-00 by a single officer. He appealed to the Commissioner
General of Police in terms of the Police Act and his appeal was dismissed.
He filed an application for review in HB 153/11 and the application was
dismissed by NDOU J (as he then was). The Applicant then noted an appeal
which is now out of time hence the need to apply for condonation.
The problem that faces the applicant
herein is the propriety of the appeal itself. Section 34 (1) of the High Court
Act [Chapter 7:06] provides that:-
“The
High Court shall have jurisdiction to hear and determine an appeal in any
criminal case from the judgment of any court or tribunal from which, in terms
of any enactment, an appeal lies to the High Court.”
There
is however no provision in the Police Act [Chapter 11:10] that stipulates that
an appeal against the decision of a single officer or of the Commissioner
General lies with the High Court.
In terms of Section 51 of the Police
Act [Chapter 11:10],
“A
member who is aggrieved by any order in terms of section 48 or 50 may appeal to
the Police Service Commission against the order within the time and the manner
prescribed, and the order shall not be executed until the decision of the
Commission has been given.”
The Police Act [Chapter 11:10] does
not therefore provide for appeals to the High Court and the High Court clearly
in terms of Section 34(1) alluded to herein has no jurisdiction to hear
Applicant's appeal. In considering whether an application for condonation
for the late noting of an appeal should be granted or not the court has to make
the following considerations:-
(a)
whether the Applicant has a reasonable explanation for failure to note the
appeal on time, and,
(b)
whether there are prospects of success on the merits (that is, on the appeal
itself).
Refer
to Fuyana v Moyo SC 236/00. The fact that there is no provision in
the Police Act
[Chapter 11:10] for an appeal to
this court in the manner that Applicant seeks to proceed, is in itself a
pointer to the lack of merit in the appeal noted by the Applicant. It
therefore follows that the appeal is devoid of merit and has no prospects of
success at all. Accordingly therefore, this application can not
succeed.
I accordingly dismiss the
application with no order as to costs as none were applied for.
Civil Division, Attorney General's office, respondents' legal practitioners
